Citation Nr: 1308805
Decision Date: 03/15/13 Archive Date: 03/25/13
DOCKET NO. 10-40 713 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim for entitlement to nonservice-connected pension.
2. Whether new and material evidence has been received to reopen a claim for entitlement to special monthly pension (SMP).
ATTORNEY FOR THE BOARD
J. Smith, Counsel
INTRODUCTION
The Veteran served on active duty from February 1976 to May 1979.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the Department of Veterans Affairs' (VA) Regional Office (RO) Pension Management Center in Pt. Paul, Minnesota.
In the September 2010 statement of the case (SOC), the RO addressed the claims for entitlement to nonservice-connected pension and SMP on the merits. However, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claims. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).
The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the statement of the case. The Board notes that some documents pertinent to this appeal, including the Veteran's January 2009 claim, are included in the Virtual VA file only.
The issue of entitlement to service connection for an eye disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
FINDINGS OF FACT
1. In an October 2005 decision, the RO denied entitlement to nonservice-connected pension and special monthly pension (SMP). The Veteran was notified of the decision and of his appellate rights, but he did not appeal. There was also no evidence received within one year of the issuance of that decision.
2. The evidence received since the October 2005 decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claims for nonservice-connected pension and SMP.
3. The Veteran did not serve on active service during a period of war, and thus, he does not meet the threshold eligibility requirement for nonservice-connected pension.
4. As the Veteran is not eligible to receive nonservice-connected pension benefits, there is no basis for entitlement to SMP.
CONCLUSIONS OF LAW
1. The unappealed December 2005 decision that denied entitlement to nonservice-connected pension and SMP is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1103 (2012).
2. The evidence received subsequent to the October 2005 decision is new and material, and the claims for nonservice-connected pension and SMP are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).
3. The criteria for nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 101(12), 1501, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.102, 3.159 (2012).
4. The claim of entitlement to SMP is without legal merit. 38 U.S.C.A. §§ 1502, 1503, 1521 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Notice and Assistance
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).
In the decision below, the Board has reopened the Veteran's claims, and therefore, regardless of whether the requirements have been met in this case, no harm or prejudice to the appellant has resulted with respect to the issues of whether new and material evidence has been submitted. Therefore, the Board concludes that the current laws and regulations have been complied with, and a defect, if any, in providing notice and assistance to the Veteran was at worst harmless error in that it did not affect the essential fairness of the adjudication. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.
With respect to the merits of these claims, the RO did inform the Veteran of the reasons for its determinations, and he has been afforded the opportunity to present evidence and argument with respect to the claims. Moreover, the Board has determined that there is no legal entitlement to the claimed benefits as a matter of law. The Veteran does not dispute the facts of this case, such as the dates of his military service, but rather disputes the application of the law to the facts. The notice provisions and duty to assist provisions are not applicable to a claim, where the claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-2004 (June 23, 2004). As there is no dispute as to the underlying facts of this case, and as the Board has denied the claim as a matter of law, the legal provisions regarding the duty to notify and to assist are inapplicable. See e.g., Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); Wensch v. Principi, 15 Vet. App. 362 (2001); Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter).
Given the foregoing, there is no issue as to whether VA has complied with its duty to notify the appellant of his duties to obtain evidence, see Quartuccio v. Principi, 16 Vet. App. 183 (2002), and the Board finds that there is no reasonable possibility that any further assistance would aid the appellant in substantiating this claim. 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to an appellant are to be avoided). Accordingly, it is not prejudicial for the Board to decide the matter without further development. Bernard v. Brown, 4 Vet. App. 384 (1993).
Law and Analysis
VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities which are not the result of willful misconduct. 38 U.S.C.A. § 1521(a). Such benefits have a number of requirements, including that a Veteran (1) served in the active military, naval, or air service for 90 days or more during a period of war, (2) is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.3, 3.23. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. § 3.3(a)(3) (2012).
As to the requirement of wartime service, a Veteran meets the service requirements of this section if he or she served in the active military, naval, or air service 1) for ninety days or more during a period of war; 2) during a period of war and was discharged or released from such service for a service-connected disability; 3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or 4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a)(3).
The term "period of war" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of War by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C.A. § 1501(4) (West 2002); 38 C.F.R. § 3.2 (2012). For VA pension purposes, the periods of war are defined at 38 C.F.R. § 3.2. Specifically, according to 38 C.F.R. § 3.2, the Korean conflict is defined as the period beginning on June 27, 1950 through January 31, 1955. The Vietnam era is defined as the period beginning on February 28, 1961 and ending on May 7, 1975, for Veterans who served in the Republic of Vietnam during that period. 38 U.S.C.A. § 101(29)(A); 38 C.F.R. § 3.2(f). In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964 and ending on May 7, 1975. 38 U.S.C.A. § 101(29)(B), (33); 38 C.F.R. § 3.2(f),(i).
Increased pension in the form of SMP benefits is payable to a Veteran by reason of need for aid and attendance or by reason of being housebound. 38 C.F.R. § 3.351(a)(1).
Initially, the Board notes that the Veteran's claims for nonservice-connected pension and SMP were previously considered and denied by the RO in an October 2005 decision. The Veteran was notified of that decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Moreover, there was no evidence received pertinent to these issues within one year of the issuance of the decision. 38 C.F.R. § 3.156(b). Therefore, the Board finds that the October 2005 decision became final.
In January 2009, the Veteran essentially requested that his claims be reopened. The March 2009 decision currently on appeal reopened the claims, but denied the issues on the merits.
In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claims in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).
New and material evidence is not required "as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). "[T]he phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence." Rather, it is simply "a component of the question of what is new and material evidence," and should be informed by the question of whether the "evidence could, if the claim were reopened, reasonably result in substantiation of the claim." Shade, 24 Vet. App. at 117-18.
In this case, the RO denied the Veteran's prior claim because he did not have wartime service. In connection with his current claim, the Veteran has alleged that he was stationed in Korea for twelve months. He contends that, during this time, two United States Army officers were killed by the enemy and that, in response, a "red alert" was issued. During the "red alert," sirens blared, and troops were instructed to report for a headcount, instruction, and issuance of weapons with live ammunition and other equipment. The "red alert" was over when it was determined that the threat of imminent attack had passed. The Veteran essentially argues that this "red alert" constituted a period of wartime service.
This evidence is new, as the Veteran did not previously make these allegations. It is also material because his statements directly address the reason the RO previously denied the claims. He has presented argument that he did have wartime service, which raises a reasonable possibility of substantiating the Veteran's claims. His statements are also presumed credible for purposes of reopening the claims. Accordingly, the Board concludes that that new and material evidence has been received to reopen the previously denied claims.
For the reasons discussed above, the Board finds that there is no prejudice in addressing the merits of the reopened claims. The RO has already reopened and considered the merits of the claims, and there are no prejudicial errors with respect to the duty to notify and assist.
The threshold issue to initially address in a pension case is whether the Veteran has the requisite period of wartime service. If that issue is answered in the affirmative, the additional issues of permanent and total disability and net worth and income requirements will then be addressed. However, if he does not have the requisite wartime service, there is no need to proceed further or address any other issue.
In this case, the basic facts in this case are not in dispute. The Veteran's DD Form 214 reflects that he served on active duty from February 2, 1976, to May 23, 1979, and had no prior active service. Thus, the record clearly shows that the Veteran's active service was after the Vietnam Era and prior to the Persian Gulf War.
The Veteran does not dispute that he did not serve during an official period of war as defined by the regulations. See October 2010 VA Form 9. Rather, he contends that he served during a "red alert," which should also constitute a period of war. However, there is no provision of law providing that service during "red alert" conditions constitute wartime service for purposes of establishing eligibility to nonservice-connected pension. The periods of war are clearly defined at 38 C.F.R. § 3.2 and make no reference to periods of "red alert."
The Board is bound in its decisions by the statutes enacted by the Congress of the United States and VA regulations issued to implement those laws. See 38 U.S.C.A. § 7104(c); see generally Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (the Board must apply "the law as it exists . . . ."). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).
Based on the foregoing, the Board finds that the Veteran did not serve in the active military, naval, or air service during a period of war, and is not eligible to receive pension benefits under the provisions of 38 U.S.C.A. § 1521. Because the Veteran does not meet the basic eligibility requirements for a nonservice-connected pension, his claim must be as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, his claim for a nonservice-connected pension is denied.
In addition, the Board notes that special monthly pension (SMP) is an increased level of VA pension benefits. 38 C.F.R. § 3.351. As the Veteran is not entitled to receive nonservice-connected pension, he is not eligible to receive nonservice-connected pension at a higher, special monthly rate under 38 C.F.R. § 3.351.
ORDER
New and material evidence having been submitted, the claim of entitlement to
nonservice-connected pension is reopened.
Entitlement to nonservice-connected pension is denied.
New and material evidence having been submitted, the claim of entitlement to
Special monthly pension is reopened.
Entitlement to special monthly pension is denied.
____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs